PREMIUM ROOMS

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

THE PEOPLE OF THE STATE No. BA068880
OF CALIFORNIA,
Plaintiff,

v.

ERIK GALEN MENENDEZ and
JOSEPH LYLE MENENDEZ,
Defendants.

NOTICE OF MOTION AND SUPPLEMENTAL BRIEF BY DEFENDANT JOSEPH LYLE
MENENDEZ FOR ORDER PROHIBITING PROSECUTION AND CO-DEFENDANT FROM
ELICITING OR REFERRING TO ALLEGED OUT-OF-COURT STATEMENTS BY CO-
DEFENDANT WHICH INCRIMINATE DEFENDANT

DATE: January 23, 1995 TIME: 9:00 A.M. PLACE: Department NW N

TO GIL GARCETTI, DISTRICT ATTORNEY FOR THE COUNTY OF LOS ANGELES,
AND/OR HIS REPRESENTATIVE, TO ERIK GALEN MENENDEZ AND HIS COUNSEL
OF RECORD AND TO THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that January 23, 1995, or at a future date
convenient to the Court and counsel, at 9:00 a.m. or as soon
thereafter as counsel can be heard in Department Northwest "N"" of
the above-entitled court, defendant Joseph Lyle Menendez ("Lyle
Menendez") will move the Court for an order prohibiting the
prosecution and co-defendant Erik Galen Menendez ("Erik Menendez")
and his counsel of record from eliciting or referring to alleged
out-of-court statements by Erik Menendez which might tend to
incriminate Lyle Menendez. The motion will be based on the
attached memorandum of points and authorities; the Motion by
Defendant Joseph Lyle Menendez for Order Prohibiting Co-Defendant
From Eliciting or Referring to any Out-Of-Court Statements by Co-
Defendant Which Incriminate Defendant filed December 15, 1994; the
People's Supplemental Proffer of Evidence to be Presented Before a
Single Jury (undated) originally scheduled for hearing June 27,
1994; the People's Supplemental Proffer of Evidence to be
Presented Before a Single Jury dated December 8, 1994; the
Response by Joseph Lyle Menendez to People's Proffer of Evidence
to be Presented Before a Single Jury dated June 13, 1994 and
accompanying Exhibits "1" through "18"; the Response to
Prosecution's Proffer of Evidence to be Presented Before a Single
Jury filed by Erik Galen Menendez dated June 13, 1994; the Notice
of Motion and Motion for Separate Juries, or, in the Alternative,
for Separate Trials, with Supporting Points and Authorities and
Exhibit "A" filed by defendants Joseph Lyle and Erik Galen
Menendez; the transcript of the proceedings in this case; the
pleadings, motions, briefs, records and files herein; and such
other and further evidence and argument as may be presented by
defendant at the hearing on this motion.

As described in the Motion by Defendant Joseph Lyle Menendez for
Order Prohibiting Co-Defendant From Eliciting or Referring to any
Out-Of-Court Statements by Co-Defendant Which Incriminate
Defendant filed December 15, 1994 ("Motion to Prohibit"), the
application of the Aranda-Bruton rule(1) to the prosecution's
previous and pending proffers of evidence has been the subject of
substantial briefing and argument by the parties.(2) In the
Motion to Prohibit, Lyle Menendez for the first time formally
requested that, in addition to the prosecution's proposed
redactions of proffered statements to comply with Aranda-Bruton,
this Court order co-defendant Erik Menendez to refrain from
eliciting the portions of the alleged out-of-court statements by
Erik Menendez which might tend to incriminate Lyle Menendez.

In its most recent proffer entitled "People's Supplemental Proffer
of Evidence to be Presented Before a Single Jury" dated December
8, 1994 ("Supplemental Proffer"), the prosecution proposes to
offer additional testimony of Craig Cignarelli respecting
statements purportedly made to him by Erik Menendez.(3) The
prosecution further proposes redaction of all such supplemental
statements to delete any reference to Lyle Menendez.

This brief is to supplement the Motion to Prohibit, and further to
request that this Court preclude the prosecution from eliciting
certain alleged statements by Erik Menendez to Craig Cignarelli
which might prejudice Lyle Menendez in a joint trial.
Specifically, the prosecution should be precluded from eliciting
testimony by Craig Cignarelli which, by inference, implies that
Lyle Menendez killed his mother. Similarly, the co-defendant
should be prevented from bringing out testimony on cross-
examination which the prosecution could not ask on direct. This
motion and supplemental brief is intended to present an
illustrative but not exclusive list of examples of such potential
testimony by Mr. Cignarelli.

II. EXAMPLES OF TESTIMONY THE PROSECUTION SHOULD BE PRECLUDED
FROM ELICITING

"He was unable to shoot his mother and she tried to get away.
After it looked like his mother was dead, he shot her twice with
his gun." (Supplemental Proffer, p.3, ll. 3-5.)

The clear inference in this proposed statement is that, after
Erik's mother tried to get away, someone else killed her. Erik
then shot her after she appeared to be dead. The "someone else,"
of course, could only be Lyle Menendez in the minds of the jury
members. The proposed redaction thus violates the Aranda-Bruton
rule in that the proposed redaction incriminates the non-
declarant.

III. EXAMPLES OF TESTIMONY THE CO-DEFENDANT SHOULD BE PRECLUDED
FROM ELICITING

The same statement and inference objected to above must not be
brought out by co-defendant. In her cross-examination of Craig
Cignarelli at the previous trial, counsel for Erik Menendez had
the following colloquy:

Ms. Abramson: May I have a moment, your Honor?
Q You first told the story to Detective Zoeller during that
November 17th meeting at Baker's Square, correct?
A If it was November 17th, yes.
Q Why don't we -- unless they object, we'll assume it is. And
when you told him then what Erik had said to you, you told
Detective Zoeller that Erik said that he actually was -- did not
shoot his mother when he walked into the room. That, although his
brother said, "shoot mom," he couldn't do it.
A That's right. He did not say he didn't shoot.
Q Let's take one line at a time.
A Okay. He said he didn't shoot, though.
Q You told the officers on November 17th that what Erik told
you was: "Lyle was to shoot my dad, and I was supposed to shoot
my mother."
A That's correct.
Q Are you with me so far?
A Yes.
Q "We went into the room and Lyle pointed his gun at my dad and
shot him. He then went over and shot him in the head."
A That's correct.
Q "Lyle shot her too?"
A That's correct.
Q "After it looked like my mother was dead, I shot her twice
with my gun'?
A That's correct. (Reporter's Transcript, p. 7803, l. 3
through p. 7804, l. 9.)

Obviously the co-defendant cannot be permitted to present this
testimony that the prosecution is precluded from introducing.
Similarly, the following previous testimony by Mr. Cignarelli
respecting Erik Menendez's statements cannot be pursued by the co-
defendant before a single jury:

The Witness: He said that he went back outside and his brother
was standing there with two shotguns and said: 'Let's do it.'
And they walked inside and Lyle was standing -- or Erik went up to
the door on the left, which was slightly open. And the door on
the right, Lyle went up and put his shoulder against the door on
the right. And Erik said he looked in, saw his parents sitting on
the couch. And Lyle sung open the door and shot his father and
looked at Erik and said: 'Shoot mom.' And Erik said he shot his
mom as she was standing up and yelling." (Reporter's Transcript,
p. 7758, ll. 10-21.)

Another example of testimony which may not be elicited by the co-
defendant is set forth in an affidavit by Detective Zoeller in
support of search warrant number 1542, dated January 24, 1990,
which was obtained in connection with this case. In that
affidavit, Detective Zoeller states that:

"On November 17, 1989, your affiant interviewed Craig
Cignarelli....Erik stated, 'Lyle and I drove up to the house,
opening the gate and pulled into the driveway. We unlocked the
front door and walked in. My parents were in the family room
watching television. Lyle looked at me and said, 'let's do it!'
We walked outside to the front of the house and got the guns. We
walked back inside and Lyle was to shoot my dad and I was supposed
to shoot my mother.'

'We went into the room and Lyle pointed his gun at dad and shot
him. He then went over and shot him in the head. I was unable to
shoot my mom and she tried to get away. Lyle shot her too. After
it looked like my mother was dead, I shot her twice with my gun.'
(Affidavit of Det. Les Zoeller, p. 3, ll. 7-25.)

Similarly, the co-defendant must not be permitted to inquire into
the following recitation by Detective Zoeller of an alleged
statement by Mr. Cignarelli respecting an alleged statement by
Erik Menendez:

"Craig then posed the question, 'What if something were to happen
to Erik in Mexico, would we (the police) be able to find him.'
I/Os asked what he was referring to. He said that Erik was scared
of Lyle. What if Lyle found out that Erik had told of the murder
or wanted to kill Erik for the entire inheritance." (Beverly
Hills Police Report dated 11/28/89, p. 3 of 3.)

IV. CONCLUSION

The above examples further illustrate the pitfalls of seeking to
redact the testimony of any witness, and the testimony of Mr.
Cignarelli in particular, in a trial before a single jury. For
all the reasons set forth herein and in the numerous briefs
previously filed on this issue, defendant Lyle Menendez
respectfully requests that this motion be granted.

2 See People's Proffer of Evidence to be Presented Before a Single
Jury (undated) originally scheduled for hearing June 27, 1994;
People's Supplemental Proffer of Evidence to be Presented Before a
Single Jury dated December 8, 1994; Response by Joseph Lyle
Menendez to People's Proffer of Evidence to be Presented Before a
Single Jury dated June 13, 1994 and accompanying Exhibits "1"
through "18"; Response to Prosecution's Proffer of Evidence to be
Presented Before a Single Jury filed by Erik Galen Menendez dated
June 13, 1994; Notice of Motion and Motion for Separate Juries,
or, in the Alternative, for Separate Trials, with Supporting
Points and Authorities and Exhibit "A" filed by defendants Joseph
Lyle and Erik Galen Menendez; Response to Prosecution Motion to
Admit Evidence (Filed Under Seal), filed April 20, 1993 by Lyle
Menendez, pp. 21-38; Response to Prosecution Motion to Admit
Evidence (Filed Under Seal) filed April 14, 1993 by Erik Menendez,
pp. 3-13.

3 Statements supposedly made by Erik Menendez to Craig Cignarelli
concerning the homicides were proffered in the People's Proffer of
Evidence before a Single Jury (undated) originally scheduled for
hearing June 27, 1994. As noted in the Response by Joseph Lyle
Menendez to People's Proffer of Evidence to be Presented Before a
Single Jury filed June 13, 1994, the prosecution has failed to
identify the exact redactions it proposes with respect to those
alleged statements, making a specific response to that portion of
the proffer relating to Mr. Cignarelli impossible at this time.

-----
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource For Legal Pros & Laypeople Alike.
https://www.lectlaw.com

* * * * * * * * * *No one connected with the 'Lectric Law Library, including Sponsors, Advertisers, & Content Providers,
necessarily Endorses, Warrants or Approves of any of its material. Also, Library content is NOT meant
to provide Specific Legal Advice, or to Solicit or Establish Any Kind of Professional-Client Relationship.